United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT'S MOTION FOR
E. WALKER, U.S. DISTRICT JUDGE
removed action, the Plaintiff, Joseph McMullin, alleges the
Defendant, Trooper Andrew W. Peirson, violated his
“rights under the Fourth Amendment of the United States
Constitution to be free from excessive, unreasonable, or
unnecessary force” during an arrest for criminal OUI,
29-A M.R.S.A. § 2411. Pl.'s Compl. ¶ 28 (ECF
No. 3-2). Defendant Peirson moves for summary judgment on the
Plaintiff's excessive force claim, arguing that his
actions were objectively reasonable under the circumstances.
Alternatively, the Defendant argues that even if the
Plaintiff's rights were violated, summary judgment is
warranted on the basis of qualified immunity. Mot. Summ. J.
(ECF No. 24).
on my review, I find that the Plaintiff has not raised
genuine issue for trial to support his contention that the
force used was unreasonable and I, therefore, grant
the facts in the light most favorable to the Plaintiff. The
summary judgment facts are drawn from the parties'
stipulations and their statements of material facts submitted
in accordance with Local Rule 56. The Court will treat as
undisputed a statement of fact admitted by the opposing
party. If a statement is denied or qualified by the opposing
party, or if an evidentiary objection is raised concerning
the record evidence cited in support of a statement, the
Court will review those portions of the summary judgment
record cited by the parties, and will accept, for summary
judgment purposes, the factual assertion that is most
favorable to the party opposing the entry of summary
judgment, provided that the record material cited in support
of the assertion is of evidentiary quality and is capable of
supporting the party's assertion, either directly or
through reasonable inference. D. Me. Loc. R. 56; Boudreau
v. Lussier, 901 F.3d 65, 69 (1st Cir. 2018).
Additionally, in cases such as these where the events in
question are captured on video and the parties have
stipulated to the authenticity and admissibility of the
video, the court must “view[ ] the facts in the light
depicted by the videotape.” Scott v. Harris,
550 U.S. 372, 380-81 (2007); see also Mitchell v.
Miller, 56 F.Supp.3d 57, 61 (D. Me. 2014),
aff'd, 790 F.3d 73 (1st Cir. 2015).
February 21, 2016, Defendant Peirson, a Trooper of the Maine
State Police, was on patrol in his marked police cruiser in
Howland, Maine. Def.'s Statement of Material Facts
(“DSMF”) ¶¶ 1, 2 (ECF No. 23, #211). At
approximately 8:00 pm, Trooper Peirson stopped a vehicle
operated by Plaintiff McMullin due to his reasonable and
articulable suspicion that Mr. McMullin was intoxicated.
Id. ¶¶ 4-5; Joint Statement of Facts
(“JSF”) ¶ 1 (ECF No. 21, #208). Mr. McMullin
was accompanied by two passengers in the vehicle: Ashley
McMullin, Mr. McMullin's then 15-year-old daughter, and
Kylie Tibbetts, the then 18-year-old girlfriend of Mr.
McMullin's son. DSMF ¶ 13.
brief interaction during which Trooper Peirson observed that
Mr. McMullin's speech was slurred, his eyes were glazed
over, and he smelled of alcohol, Trooper Peirson asked Mr.
McMullin to step out of his vehicle and perform a variety of
field sobriety tests. Id. ¶¶ 12, 16. At
the conclusion of these tests, both parties agree Trooper
Peirson had probable cause to arrest Mr. McMullin for
criminal OUI, 29-A M.R.S. § 2411. Id. ¶
17; JSF ¶ 2. Reliable blood alcohol content test results
later confirmed Trooper Peirson's assessment, indicating
that Mr. McMullin had a 0.149 blood alcohol level. DSMF
¶¶ 96-97; JSF ¶ 3.
completing the field tests, Trooper Peirson informed Mr.
McMullin he was under arrest. DSMF ¶¶ 18, 19.
Although Mr. McMullin never tried to run away from Trooper
Peirson, Pl. Add'l Statement of Material Facts
(“PSMF”) ¶ 107 (ECF No. 30, #278), he,
nevertheless, failed to comply with Trooper Peirson's
eight separate requests to turn around and put his hands
behind his back. DSMF ¶¶ 18, 26, 29, 34, 36, 38,
44, 48. Instead, Mr. McMullin consistently backed away from
Trooper Peirson, repeating concerns about his passengers'
safety and leaving his vehicle on the road. DSMF ¶¶
20, 27, 37, 45, 49. Trooper Peirson repeatedly advised Mr.
McMullin that the kids would be safe and that he would ensure
that somebody came to collect them. Id. ¶¶
29, 34, 38, 40. After repeated refusals, Trooper Peirson
implored, “Don't make your kids watch this,
OK?” Id. ¶ 46.
process of backing away from Trooper Peirson, Mr. McMullin
alternated between backing towards his car-at one point,
contacting or nearly contacting the driver's side of the
vehicle with his back-and backing across the road, away from
his vehicle. Id. ¶¶ 31, 44, 48. On two
separate occasions, Mr. McMullin entered the southbound,
oncoming lane of traffic. Id. ¶¶ 31, 48.
Eventually, Trooper Peirson concluded, reasonably, that force
was necessary to effect Mr. McMullin's arrest due to Mr.
McMullin's repeated refusals to comply with his commands.
Id. ¶ 53.
facing Mr. McMullin, Trooper Peirson grabbed one of Mr.
McMullin's wrists and attempted to turn him around to
handcuff him. DSMF ¶ 54; PSMF ¶ 103. As he did so,
Mr. McMullin tensed his body, resisting Trooper Peirson's
effort. DSMF ¶ 55. Trooper Peirson then struck Mr.
McMullin in the face. DSMF ¶ 57; PSMF ¶ 108.
subsequent statements, Mr. McMullin asserts he was knocked
unconscious “when the Trooper first hit him.”
PSMF ¶ 123; Dep. of Joseph McMullin (“McMullin
Dep”) 18-20, 38-41 (ECF No. 20-7, #156, 161). However,
as discussed below, the record establishes that any
unconsciousness was, at most, momentary. To the extent Mr.
McMullin would suggest he experienced any extended
unconsciousness the suggestion is contradicted by the video
record and Mr. McMullin's own testimony and admissions.
Indeed, the objective audio evidence is consistent with
Trooper Peirson's assertion that Mr. McMullin was not
knocked unconscious and even continued to converse and
actively resist arrest throughout the encounter. Def.'s
Response to PSMF ¶ 123; DSMF ¶¶ 57, 66, 67,
71, 72, 75, 77, 79, 84, 86, 87.
momentarily unconscious or not, the parties agree that
Trooper Peirson grabbed Mr. McMullin as he was falling and
directed him to the ground on his back, in the opposite
traffic lane. PSMF ¶¶ 111, 113; DSMF ¶¶
60, 62. Trooper Peirson landed on top of him. DSMF ¶ 61.
the ground, Trooper Peirson straddled Mr. McMullin's
body. PSMF ¶ 115; DSMF ¶ 63. As he attempted to
handcuff Mr. McMullin, Trooper Peirson shouted, “Turn
around! Put your hands behind your back!” DSMF ¶
63. At this point, the video shows Mr. McMullin's arm
moving upwards towards Trooper Peirson. Cruiser Video, 17:26
- 17:35 (Doc. 20-1, #64). While the parties contest the
purpose of this movement,  the parties nevertheless agree that Mr.
McMullin exclaimed “Officer!” and moved his hands
in front of his face. DSMF ¶ 65; PSMF ¶ 116.
Peirson then struck Mr. McMullin a second time, possibly with
a closed fist, and rolled Mr. McMullin onto his stomach,
shouting “Give me your hands, now!” PSMF
¶¶ 117-118; DSMF ¶¶ 69-70. Mr. McMullin
responded, “Officer, relax!” DSMF ¶ 71.
Mr. McMullin on his stomach, Trooper Peirson struggled to
gain control of Mr. McMullin's wrists as they were under
his chest and Trooper Peirson could not reach them.
Id. ¶ 72. At this point, Trooper Peirson
asserts Mr. McMullin “kept moving his hands and then
put his wrists up under his chest so [he] could not reach
them.” Id. ¶ 72.
Peirson then grabbed the back of Mr. McMullin's head and
pushed it down into the pavement and delivered a third blow
to the back of Mr. McMullin's head. DSMF ¶ 73; PSMF
¶¶ 120-21, 126. Once again, during his deposition, Mr.
McMullin admitted to speaking following this third blow.
Cruiser Video, 17:48, (Doc. 20-1); McMullin Dep. 42:13-16
(ECF No. 20-7, #162). After this strike, Trooper Peirson
attached handcuffs to one of Mr. McMullin's wrists. DSMF
Peirson maintains that Mr. McMullin “continued to
resist” after one wrist was handcuffed and continued to
keep the other wrist away from Trooper Peirson. Id.
¶¶ 75, 77. Mr. McMullin denies offering resistance
while he was on the ground, but it is apparent from the video
that he was conscious throughout the struggle and did not
comply with orders to give up his hands. Pl.'s Response
to DSMF ¶ 75; Dep. of Kylie Tibbetts (“Tibbetts
Dep.”) 17-18 (ECF No. 20-8, #184-85). Regardless, the
parties agree that Trooper Peirson then commanded Mr.
McMullin to “turn around, give me the other
hand.” DSMF ¶ 76.
Mr. McMullin did not comply, Trooper Peirson ordered Mr.
McMullin to give him his other hand two additional times-the
final command coming eight seconds after the previous.
Id. ¶¶ 78, 80. Trooper Peirson eventually
pulled Mr. McMullin's wrist out from under his body,
scraping his hand in the process. Id. ¶ 81, 82.
from the moment Trooper Peirson first grabbed Mr.
McMullin's wrist to the time Trooper Peirson completed
handcuffing Mr. McMullin, the confrontation lasted
approximately 44 seconds. Id. ¶ 83. The record
and parties are unclear as to whether Trooper Peirson
delivered a fourth strike prior to successfully handcuffing
Mr. McMullin. DSMF ¶ 85; PSMF ¶ 127. Both parties
confirm Mr. McMullin spoke to Trooper Peirson
“throughout their struggle.” DSMF ¶ 87.
the confrontation, Trooper Peirson noticed Mr. McMullin had
cuts on the bridge of his nose and asked Mr. McMullin if he
needed an ambulance, to which Mr. McMullin responded in the
affirmative. Id. ¶¶ 92-93. Trooper Peirson